THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY RAFFERTY, BROWNE, ORIE, PIPPY, FONTANA, SCARNATI AND BOSCOLA, APRIL 8, 2011

REFERRED TO LABOR AND INDUSTRY, APRIL 8, 2011  

AN ACT

Prohibiting employment of illegal aliens; requiring

participation in the Basic Pilot Program as a condition for

Commonwealth contracts or grants; prohibiting business tax

deductions for certain compensation; requiring suspension of

licenses, registrations and certificates of incorporation

under certain circumstances; and authorizing a private cause

of action.

The General Assembly finds that:

(1)  Employers in this Commonwealth who employ

unauthorized aliens have systematically distorted the labor

market of this Commonwealth by reducing wages, adversely

affecting working conditions, evading taxes and reducing the

number of jobs available to those who are lawfully entitled

to employment in this Commonwealth.

(2)  The United States has established and maintains a

national program for the electronic verification of work

authorization, the Basic Pilot Program, which enables

employers to promptly and accurately verify the employment

eligibility of all job applicants.

(3)  It is in the best interests of and will serve and

benefit the health, safety and welfare of the public and law-

abiding business entities to adopt policies and procedures to

deter and prevent the employment of unauthorized aliens.

(4)  The Federal Government expressly permits state

governments to sanction the employers of unauthorized aliens

through licensing and other similar restrictions.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Fair

Employment Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Basic Pilot Program."  The electronic verification of work

authorization program of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (Public Law 104-208, 110

Stat. 3009-546), which is operated by the Department of Homeland

Security.

"Business entity."  An individual, corporation, partnership,

limited liability company or other legal entity, whether for

profit or not for profit, who has applied for, holds or benefits

from any registration.

"Contractor."  A person, employer or business entity that

enters into an agreement to perform any service or work or to

provide a certain product in exchange for valuable

consideration.

"Employee."  A person performing or applying for work or

service of any kind or character for hire.

"Employer."  A business entity that employs or seeks to

employ a person for hire. If there are two or more putative

employers, the business entity taking a business tax deduction

for the employee in question shall be considered the employer of

that person for the purposes of this act.

"Employment."  The act of employing or of being employed,

engaged or hired.

"Government entity."  The Commonwealth or any of its

political subdivisions. The term includes any agency, authority,

board or commission of the Commonwealth or any of its political

subdivisions.

"Registration."  Any license, permit, registration or

certificate granted or provided by a government entity.

"Unauthorized alien."  An alien who does not have the legal

right or authorization under Federal law to work in the United

States.

"Work."  A job, task, employment, labor, personal service or

any other activity for which compensation is provided, expected

or due, including activities conducted by business entities.

Section 3.  Prohibitions.

(a)  Employment.--It is unlawful for any employer to employ,

or employer or business entity to permit the employment of, an

unauthorized alien.

(b)  Affirmation for initial registration.--As a condition

for initial registration, a business entity shall provide to the

government entity:

(1)  an affidavit that the business entity is not an

employer; or

(2)  an affidavit affirming that the business entity does

not knowingly employ any person who is an unauthorized alien

as well as an affidavit and supporting documentation that the

business entity has enrolled and is an active participant in

the Basic Pilot Program.

(c)  Affirmation for continued registration.--As a condition

of the periodic renewal of a registration, a business entity

shall comply with subsection (b) as if applying for initial

registration.

(d)  Change of status.--A business entity that complied with

subsection (b)(1) as a condition of any initial registration

under subsection (b) or continued registration under subsection

(c) and, during that registration becomes an employer, shall

comply with subsection (b)(2).

(e)  Awards.--As a condition for the award of any

Commonwealth contract or grant to an employer for which the

value of employment, labor or personal service shall exceed

$10,000, the employer shall provide documentation affirming its

enrollment and participation in the Basic Pilot Program.

(f)  Government entities.--All government entities shall

enroll and actively participate in the Basic Pilot Program.

(g)  Verification.--An employer participating in the Basic

Pilot Program shall verify the employment eligibility of every

employee in the employer's hire whose employment commences after

the employer enrolls in the Basic Pilot Program.

(h)  Tax deduction.--Compensation, whether in money or in

kind or in services, provided to any unauthorized alien shall

not be allowed as a business expense deduction from any income

or business tax of the Commonwealth.

(i)  Violations.--Any business entity operating within this

Commonwealth in violation of this act shall have all

registrations suspended under subsection (j).

(j)  Enforcement.--The Secretary of State shall enforce the

requirements of this section. The following apply:

(1)  An enforcement action shall be initiated by means of

a written, signed complaint to the secretary's office

submitted by any government entity, business entity or

resident. A valid complaint shall include an allegation that

describes the alleged violator as well as the actions

constituting the violation and the date and location where

the actions occurred.

(2)  A complaint that alleges a violation on the basis of

national origin, ethnicity or race shall be deemed invalid

and shall not be enforced.

(3)  Upon receipt of a valid complaint, the secretary

shall, within three business days, request information from

the business entity that is the subject of the complaint,

which may include any of the following:

(i)  Copies of any information provided to a

government entity under subsection (b), (c) or (d).

(ii)  Identity information concerning any employees

alleged to be unauthorized aliens.

(iii)  Verification of the work authorization of

aliens provided to the employer through the Basic Pilot

Program.

(4)  The secretary shall submit identity data required by

the Federal Government to verify, pursuant to the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(Public Law 104-208, 110 Stat. 3009-546), the immigration

status and work authorization of employees alleged to be

unauthorized aliens and shall provide the employer with

written confirmation of that verification.

(5)  The secretary shall order all government entities to

suspend the registration of any business entity that the

secretary finds in violation of this act or that fails to

correct a violation of this act.

(6)  The correction of a violation with respect to the

employment of an unauthorized alien shall include any of the

following actions:

(i)  The employer terminates the unauthorized alien's

employment.

(ii)  The employer, after acquiring additional

information from the employee, requests a secondary or

additional verification by the Federal Government of the

employee's authorization under the procedures of the

Basic Pilot Program. While this verification is pending,

any enforcement action shall be tolled.

(iii)  The employer attempts to terminate the

unlawful worker's employment and the termination is

challenged in a court of this Commonwealth. While the

employer pursues the termination of the unauthorized

alien's employment in such forum, any enforcement action

shall be tolled.

(7)  A general contractor shall not be in violation of

this act with respect to any alleged unauthorized alien

employed by a subcontractor or independent contractor hired

by the general contractor if, prior to the alleged violation,

the general contractor verified that the subcontractor or

independent contractor was enrolled in the Basic Pilot

Program by requiring the subcontractor or independent

contractor to show documentary evidence of such enrollment

provided by the Federal Government.

(8)  A first suspension under this section shall

terminate one business day after a legal representative of

the business entity submits, at an office designated by the

secretary, all of the following:

(i)  Documentation acceptable to the secretary which

confirms that the business entity has enrolled in and is

participating in the Basic Pilot Program.

(ii)  A sworn affidavit stating that the violation

has ended. The affidavit shall include a description of

the specific measures and actions taken by the business

entity to end the violation and shall, if applicable,

include the name, address and other adequate identifying

information for any unauthorized aliens related to the

complaint.

(9)  For a second or subsequent violation, the secretary

shall order all government entities to suspend the

registration of any business entity for a minimum period of

90 days. After the end of the suspension period, and upon

receipt of the prescribed affidavit and documentation, the

secretary shall order all government entities to reinstate

the registration of any business entity. The secretary shall

forward the affidavit, complaint and associated documents to

the Bureau of Immigration and Customs Enforcement of the

Department of Homeland Security.

(10)  This section shall be subject to 2 Pa.C.S. Chs. 5

Subch. A (relating to practice and procedure of Commonwealth

agencies) and 7 Subch. A (relating to judicial review of

Commonwealth agency action).

(k)  State funding.--Any government entity that fails to

comply with this section and the directives from the secretary

regarding the failure of any business entity to enroll in the

Basic Pilot Program shall be ineligible for State funding.

(l)  Procedure.--This act shall not be construed to deny any

procedural mechanisms included in the Basic Pilot Program.

(m)  Federal determination.--

(1)  A determination of whether an employee is an

unauthorized alien made by the Federal Government under the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 shall create a rebuttable presumption as to that

employee's status in any judicial proceedings brought

pursuant to this act.

(2)  The court may take judicial notice of any

verification of the employee previously provided by the

Federal Government and may request the Federal Government to

provide automated or testimonial verification under the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996.

Section 4.  Ordinances.

A political subdivision of this Commonwealth may:

(1)  Enact an ordinance prohibiting the employment of

unauthorized aliens or other unlawful workers.

(2)  Deny a registration to an employer who employs

unauthorized aliens.

(3)  Enact an ordinance restricting the rental of housing

to an alien unlawfully present in the United States.

Section 5.  Construction.

This act shall be construed so as to be fully consistent with

Federal immigration and labor laws.

Section 20.  Severability.

The provisions of this act are severable. If any provision of

this act or its application to any person or circumstance is

held invalid, the invalidity shall not affect other provisions

or applications of this act which can be given effect without

the invalid provision or application.

Section 21.  Effective date.

This act shall take effect in 60 days.